Russell v. Kotsch

Decision Date13 June 1960
Docket NumberNo. 1,No. 47730,47730,1
Citation336 S.W.2d 405
PartiesH. R. RUSSELL, Appellant, v. John C. KOTSCH, Respondent
CourtMissouri Supreme Court

Dale, Potter & Flynn, by Whitney W. Potter, St. Joseph, for appellant.

Strop & Strop, St. Joseph, for respondent.

HOLMAN, Commissioner.

In this action plaintiff sought to recover damages from defendant in the sum of $100,000 for personal injuries received in a collision between his station wagon and defendant's automobile. Upon motion of defendant, plaintiff's employer, American Bilt Rite Rubber Company of Chelsea, Massachusetts, was made a third-party defendant and defendant thereafter filed a counterclaim against plaintiff and the third-party defendant in which he sought to recover damages for his personal injuries in the sum of $100,000. (That pleading is referred to as a counterclaim although, as to the third-party defendant, it should be designated a cross claim.) A trial resulted in a verdict for defendant on plaintiff's claim, and a verdict in favor of plaintiff and the third-party defendant on defendant's counterclaim. Plaintiff has appealed from the adverse judgment on his claim. Defendant did not appeal from the judgment against him on his counterclaim.

The collision in question occurred at about 9 a. m. on April 12, 1958. Plaintiff was midwest sales manager for the American Bilt Rite Rubber Company and on that morning was enroute from Omaha, Nebraska to Kansas City, Missouri in one of his employer's station wagons. The collision occurred on U. S. Highway 36, which runs generally east and west, at a point about three miles east of Troy, Kansas, and approximately 14 miles west of St. Joseph, Missouri. This heavily traveled highway was 24 feet wide and at the point of collision was slightly upgrade toward the east. The casualty occurred at the east driveway entrance into a tract of land on the south side of the highway owned by Chester Doro. Mr. Doro had started to build a house on this tract and had constructed a circular driveway from the highway onto his land with east and west entrances approximately 180 feet apart. The east driveway angled somewhat to the southwest. A road entered the highway from the north at a point 175 feet east of said east driveway. The defendant owned land in that area but at the time lived in St. Joseph. On the morning in question defendant and his wife left St. Joseph in their automobile and drove west on Highway 36 to the vicinity in question because defendant wanted to talk with Mr. Doro. When they were a short distance from the point of collision defendant's wife told him that Mr. Doro was at the building site and defendant then turned his car toward the southwest in order to proceed across the highway and into the east driveway. As his car was entering the driveway it was struck on the right side by the station wagon plaintiff was driving. The occupants of each car sustained serious injuries.

Plaintiff testified that he was driving his eastbound station wagon at from 50 to 58 m. p. h.; that when he was 60 feet from the point of collision the defendant's car, without any warning or signal, made a left turn across the south side of the highway; that he applied his brakes but didn't attempt to turn either to the left or right; that there were no vehicles behind either of the cars. He described the events immediately preceding the collision as follows:

'Q. Then what was the first indication that you had that Mr. Kotsch was going to turn left? A. When his car made the movement of the left turn.

'Q. What type of movement was that, Mr. Russell? A. Well, it was just turning all at once. In fact, I knew he was turning, I started knowing that there would be something that I would have to do unless he went on off the road because I had no idea there was any road there at all. From where I was I could see no road.

'Q. Now, when you had the first indication, when you saw Mr. Kotsch make the first motion to turn to the left, did you do anything whatsoever? A. Yes. I knew I was going to put on the brakes unless he went off the road. All at once the car seemed to stop dead on the highway.

'Q. Whose car is that? A. This car coming toward me. * * * It seemed to hestitate there, stop there, and I knew then I had to do something awful fast and to apply my brakes and try, if possible, to bring my car to a stop because the road was blocked.

'Q. Were you able to bring your car to a stop before it collided? A. No, I wasn't.'

Plaintiff testified further that the right front of his car collided with the right side of defendant's car near the front wheel.

Mrs. Kotsch, defendant's wife, testified that when their car reached a point about 175 feet from the east driveway she told her husband that Mr. Doro 'is there at the building,' and that her husband then turned on his directional light and began to drive the car diagonally across the road toward Doro's east driveway on the south side of the highway; that she had observed plaintiff's approaching car and it was about 800 feet away when they started toward the driveway; that when they were about 85 feet from the driveway entrance she again saw plaintiff's car and it was five or six hundred feet away; that at that time 'it was coming very fast. I just felt like it was flying in the air'; that at the time of the collision the front end of defendant's car was from five to seven feet into the driveway.

The defendant testified that he was 82 years old at the time of the collision; that at the time he saw Mr. Doro he turned on his left directional light and started angling his car toward the east driveway; that he saw plaintiff's car at that time and it was 750 feet or a little farther toward the west; that he did not look toward the west again and did not again see plaintiff's car prior to the collision; that he had been driving from 30 to 35 m. p. h. on the highway and reduced speed to 20 or 25 m. p. h. as he was making the turn to the south; that he was 175 feet east of the east driveway when he started to make the turn and the front of his car was five or six feet into the driveway at the time it was struck.

Chester Doro was an eyewitness to the collision. He stated that from his property a person could see the highway approximately a half mile toward the west and a quarter mile toward the east; that on the occasion in question he was standing on his property on the south side of the highway and heard brakes 'screeching' and looked up and plaintiff's car was then 'directly in front of me' and was about 70 feet from defendant's car; that the front of defendant's car was three or four feet off the highway pointing southwest and 'looked to me like it was standing still'; that plaintiff's car was going in a straight line but angling a little to the south so that its right side was about two feet off the south edge of the pavement at the time of impact; that the impact knocked defendant's car for a distance of approximately 60 feet; that plaintiff's car left skid marks for a distance of 111 feet west of the point of impact; and there was no other traffic in sight in either direction at the time.

One of the workmen at the scene called the sheriff of Doniphan County, Kansas very shortly after the collision. Plaintiff read in evidence the deposition of the sheriff who stated that he arrived at the scene within five minutes after receiving the call. He described the 111 feet of skid marks in about the same manner as did Mr. Doro. He said he talked with the defendant who stated, "I don't know where that thing come from; * * * I didn't see anything. I went to turn in * * *." Defendant denied having talked to the sheriff at all following the collision.

There was evidence that the day was clear and the pavement dry; that the overall length of defendant's car was 16 feet 2 inches.

Since the casualty occurred in Kansas the substantive law of that state is applicable. However, procedural matters are to be determined by the law of Missouri. Dell'Aria v. Bonfa, Mo.Sup., 307 S.W.2d 479.

At the close of all of the evidence plaintiff filed a motion for a directed verdict on the question of liability, leaving to the jury only the question of determining the amount of plaintiff's damages. Upon this appeal his first point is that the court erred in overruling that motion. We have concluded that the court did not err in overruling said motion because, irrespective of any other reason, there was evidence to support defendant's pleaded assignments of contributory negligence on the part of plaintiff. Defendant offered instructions submitting that plaintiff was contributorily negligent in (1) operating his station wagon at a high and dangerous rate of speed, (2) failing to keep and maintain a reasonably proper watch and lookout, and (3) failing to swerve his station wagon to the left and thus pass to the rear of defendant's automobile. We have heretofore stated the evidence and it need not be restated in connection with our discussion of this point. It would seem sufficient to say (as hereinafter discussed) that a jury reasonably could have found from that evidence that plaintiff was guilty of contributory negligence in the respects submitted. In that situation the trial court could not properly have directed a verdict for plaintiff. Creech v. Blackwell, Mo.Sup., 298 S.W.2d 394.

The next contention of plaintiff is that the court erred in giving Instructions 14, 16, and 17 at the request of defendant. Each of those instructions submitted a separate specification of contributory negligence on the part of plaintiff. In his...

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17 cases
  • Greene v. Morse
    • United States
    • Missouri Court of Appeals
    • January 30, 1964
    ...of accident. Since the accident under consideration occurred in Arkansas, the substantive law of that state governs [Russell v. Kotsch, Mo., 336 S.W.2d 405, 408(1); Hall Motor Freight v. Montgomery, 357 Mo. 1188, 1195, 212 S.W.2d 748, 753(9), 2 A.L.R.2d 1292] and Arkansas decisions construi......
  • Cope v. Thompson
    • United States
    • Missouri Court of Appeals
    • March 12, 1976
    ...upon such judicial knowledge. Excessive speed need not be shown by direct testimony but may be proved by circumstances. Russell v. Kotsch, 336 S.W.2d 405, 409 (Mo.1960); Rakestraw v. Norris, 478 S.W.2d 409, 416(11) (Mo.App.1972). As we have noted supra, if defendant had been traveling at 60......
  • Greenwood v. Vanarsdall
    • United States
    • Missouri Court of Appeals
    • April 3, 1962
    ...combined with surrounding circumstances, may be sufficient to justify the inference of a high and dangerous rate of speed. Russell v. Kotsch, Mo., 336 S.W.2d 405, 409; Hausherr v. Kansas City Public Service Co., Mo.App., 268 S.W.2d 433, 437; Lyon v. Southard, Mo., 323 S.W.2d 785, 787; Bear ......
  • Toomes v. Continental Oil Co.
    • United States
    • Missouri Supreme Court
    • April 11, 1966
    ...Our courts have generally apolied the distinction which plaintiff accepts. See Robinson v. Gaines, Mo.Sup., 331 S.W.2d 653; Russell v. Kotsch, Mo.Sup., 336 S.W.2d 405; Scott v. Jones, Mo.App., 334 S.W.2d 742; Hall Motor Freight v. Montgomery, 357 Mo. 1188, 212 S.W.2d 748, 2 A.L.R.2d 1292. I......
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